Paul Butler: Pandemic Policing: Hands Off; Don’t Arrest?

For people of color who want to left alone by the cops, the public health emergency represents the best of times and, potentially, the worst of times.

The silver lining in the coronavirus cloud is that it has altered policing in urban areas. The rough treatment that many minority group members routinely experience – random stops and frisks, arbitrary arrests, excessive force- is on the wane. The police are chilling out not because their regular methods are unconstitutional or bad for their relationship with the community, although both of those are true. Cops are keeping their hands off people to avoid exposure to the coronavirus. Who knew social distancing could advance racial justice?

Philadelphia police have been ordered to not make arrests for many non-violent offenses, including drug crimes, sex work, and burglary. Miami Police Chief Jorge Colina told his officers

“We want to do our part to mitigate the spread of the virus. If you don’t have to arrest someone, then don’t. if you don’t have put your hands on somebody, then don’t.” In Chicago, there has been a dramatic reduction in police stops and arrests. Interim Chief Charlie Beck said “Normally as a chief, that would upset me. But in this case, it tells me [officers] are doing exactly what we’re asking them.”

The truth is that in the pre-corona days, the cops were way too handsy with people of color – especially African American men – and they needed to stop it. And now that many have, evidence is emerging that aggressive policing was never about crime control.

In many of the cities where the police have reduced their enforcement, crime has gone down, not up. The Marshall Report examined data from Chicago, Detroit, Los Angeles and San Francisco. While acknowledging it is too early to talk about trends, it found dramatic drops in crime in the same places where police were making fewer arrests, and where some inmates were being released early because of coronavirus concerns.

In San Francisco, for example, crime fell 42% the first week of the city’s stay home order. The Washington Post found since the inception of the public health emergency, violent crime is down in DC, Atlanta, Baltimore, and Boston.

One theory about why crime has gone down is that many jurisdictions have implemented “shelter in place” or “stay home” orders. The idea is that when fewer people venture out, there is a less of an opportunity for criminals. But it’s not that the cops still don’t have many people they could arrest. They just don’t.

Cops are “triaging crime,” according to Chuck Wexler, executive director of the Police Executive Research Forum, and “the general guideline is to avoid arresting someone unless it’s absolutely necessary.” It’s a damn shame that this common sense strategy is likely to last only as long as the deadly virus.

The shelter in place orders, which now cover about 75% of the country, also expand police power in a way that does not bode well for racial minorities. In Washington DC, for example, it is now a crime to venture outside one’s home without an approved reason. If DC cops see a group of young black men playing basketball, the police have the authority to arrest them. If convicted, the men would be subject to a $5,000 fine and up to 90 days in jail.

There are two big problems with this approach. The first is the patent stupidity of arresting people and sending them to jail as a response to a public health emergency that is sparked by people in close contact spreading disease. As the human rights catastrophe unfolding in US prisons and jails right now reveals, correctional facilities are breeding grounds for the coronavirus.

The second concern is that the police are going to end up using this power the way they use virtually every other power they have – selectively against people of color. Virtually every study of a police department has found racial disparities in who the police investigate, arrest, and use force against. Black men are the most likely targets of this unwelcome attention.

So the reality is that the white folks having a picnic in the park are politely asked to leave so they won’t get sick. The African American teenagers on the basketball court, on the other hand, are ordered to get their asses home now. And if those kids show any resentment, they get locked up.

In the US, arrests for violating shelter in place rules are rare so far. Instead cops educate offenders about the new rules and ask them to comply. But that might change as people start to chafe under the requirements, and as the virus continues to exact its insidious toll. As San Jose Police Chief Eddie Garcia put it, ““We’re not going to stay ‘educational’ for long if people aren’t paying attention to this.”

Fear of contracting the virus appears not to have restrained the police in other countries. In Spain, 31,000 people have been cited for violating the country’s quarantine. In the Philippines, 50,000 people have been arrested for not obeying the country’s lockdown. France has deployed 100,000 police officers on the streets just to enforce its quarantine. Kenyan police beat people who broke the country’s dusk to dawn curfew; a thirteen year old boy was killed when the cops fired bullets to disperse a crowd.

An African American man wouldn’t be wrong to think he has seen this movie before, and he knows how it’s going to end. To prevent that result, US cops should not be allowed to make arrests for shelter in place violations. If there is any punishment it should be a ticket, like one would get for a traffic infraction.

The coronavirus is altering the us criminal legal process. Altering the US criminal legal process is just what people of color need. Let’s hope that the changes are for the better like the great reduction in stops and arrests. And let’s hope those changes survive this global pandemic.